Citation Nr: 18154601 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 17-11 890 DATE: November 30, 2018 REMANDED The claim of entitlement to service connection for a neck (cervical spine) disability is remanded. The claim of entitlement to an initial, compensable disability rating for thoracic spine degenerative arthritis is remanded. The claim of entitlement to an initial, compensable disability rating for Osgood Schlatter's disease of the right knee is remanded. The claim of entitlement to an initial, compensable disability rating for left knee tendinitis is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1996 to March 2000, and from March 2007 to March 2015. This appeal to the Board of Veterans Appeals (Board) arose from a July 2015 rating decision, in which the Department of Veterans Affairs (VA) Regional Office (RO), inter alia, granted service connection for thoracic spine degenerative arthritis, and reinstated service connection for right knee Osgood Schlatter’s disease and for eft knee tendinitis (following termination of disability benefits due to a period of active duty), and assigned a 0 percent (noncompensable) disability rating for each disability, effective March 27, 2015 ( the day after the date of discharge from the Veteran’s second period of active service). The RO also denied service connection for a neck disability. The Veteran disagreed with the RO’s determinations, and this appeal ensued. The Board notes that while the Veteran also appealed the denial of a claim for service connection for right shoulder disability in the July 2015 rating decision, the RO subsequently granted service connection for right shoulder degenerative changes. That action fully resolved the appeal as to the claim for service connection for right shoulder disability. Also, this appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) and 38 C.F.R. § 20.900(c). The Board’s review of the claims file reveals that additional agency of original jurisdiction (AOJ) action, prior to appellate consideration of the matters on appeal, is warranted. At the outset, the Board notes that reports of June 2017 VA-contracted examinations of the Veteran knees and back—relevant to his higher rating claims for these disabilities—were added to the claims file following transfer of the Veteran’s appeal to the Board. While a waiver of initial AOJ review of the evidence has not been received (see 38 C.F.R. § 20.1304(c)), as the higher rating claims for the back and knee disabilities are being remanded for further development, the AOJ will have the opportunity to review this evidence on remand. Also specific to the higher rating claims for thoracolumbar spine and knee disabilities, the Board notes the Veteran’s reports that he suffers from flare-ups of the back and knee disabilities. A precedential opinion of the United States Court of Appeals for Veterans Claims (Court) is directly applicable to these claims. In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court held that where a veteran reports having flare-ups of joint disability, examination reports must describe the frequency, duration, characteristics, severity, and functional loss due to flare-ups. Adequate descriptions have not been provided with respect to the Veteran’s back and knee disabilities. Moreover, while noting that the examinations were medically consistent with the Veteran’s reports of functional loss with repetitive use over time and during flare-ups, the examiner conducting the June 2017 VA examinations indicated that he could not provide an opinion as to whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time or during flare-ups without mere speculation, as the Veteran was not being examined immediately after repetitive use and he was not having a flare-up of either of the disabilities at that time. The Board notes that the Court in Sharp addressed the adequacy of such “mere speculation” opinions, and explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering an opinion consistent with DeLuca v. Brown, 8 Vet. App. 202 (1995). Indeed, it is not expected that such observation will usually occur; therefore, it is anticipated that VA “examiners will offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of veterans.” Id. at 35. Accordingly, remand of these higher rating claims is warranted for new VA examinations of the Veteran’s back and knees to obtain clinical findings properly responsive to the considerations addressed in Sharp. See 38 C.F.R. § 4.2. Also, with respect to the Veteran’s claimed neck disability, his essential assertion is that he injured his neck at the same time he injured his thoracic spine in 2012. Review of his STRs additionally reveals that he injured his neck during service in September 1998, while lifting weights. The assessment at that time was cervical strain. The Veteran was afforded a VA contracted examination of his cervical spine in November 2014. The examiner indicated in the report that the Veteran did not have a current neck disability. Notably, however, an imaging study report of the Veteran’s neck dated in September 2014, during his period of active, and just two months prior to the date he filed his service connection claim for neck disability, noted an impression of right C3 neural foraminal narrowing. The examiner, however, did not comment on this in-service finding. Despite the finding of the November 2014 examiner, this evidence suggests the existence of neck (cervical spine) disability during a time frame pertinent to the current claim. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) and McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (collectively holding that the current disability requirement for service connection may be met by evidence of the claimed disability shortly prior to the filing or at the time of filing of the claim, or during the pendency of the claim). Accordingly, a remand of this matter is warranted to afford the Veteran a new VA examination to obtain an etiology opinion as to all neck (cervical spine) disability currently present, or present at any point pertinent to the current claim on appeal—even if now asymptomatic or resolved. Id. Prior to arranging for new VA examinations, to ensure that all due process requirements are met, and the record for all claims is complete, the AOJ should give the Veteran another opportunity to provide additional information and/or evidence pertinent to any claim(s) on appeal, explaining that he has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C. § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. Adjudication of each higher rating claim should include consideration of whether staged rating of the disability—assignment of different ratings for distinct periods of time, based on the facts found—is appropriate. These matters are hereby REMANDED for the following action: 1. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to any claim(s) on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received are associated with the claims file, arrange for the Veteran to undergo VA examination of his cervical spine by an appropriate physician. The contents of the entire electronic claims file, to include a complete copy of this REMAND, must be made available to the designated examiner, and the examination report should reflect consideration of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should clearly identify and diagnose all cervical spine disability(ies), to include as indicated by x-ray evidence of foraminal narrowing, currently present or present at any point pertinent to the current claim (even if now asymptomatic or resolved). Then, for each such diagnosed disability, the examiner should provide an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the disability had its onset in service or is or was related to service, to include noted cervical spine strain during service. In addressing the above, the examiner must consider and discuss all relevant medical and lay evidence, to include the Veteran’s assertions of injuring his neck at the time he injured his thoracic spine during service (which resulted in his service-connected thoracolumbar spine disability). All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA knee and thoracolumbar spine examinations, each by an appropriate medical professional. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to each designated individual, and each examination report should reflect consideration of the Veteran’s documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. For each report, all examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. Thoracolumbar spine- The examiner should conduct range of motion testing of the thoracolumbar spine (expressed in degrees) on both active motion and passive motion, and in both weight bearing, and non-weight bearing (as appropriate). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly so state, and explain why. The examiner should render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the thoracolumbar spine disability. If pain on motion is observed, the examiner should indicate the point at which pain begins. Also, the examiner should describe the frequency, duration, characteristics, severity, and functional loss during flare-ups of thoracolumbar spine disability. If the examination is not conducted during a flare-up, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. If it is not feasible for the examiner to make the above determinations without resorting to speculation, he or she must provide an explanation for why this is so. The examiner is advised that the inability to provide an opinion without resorting to speculation must be based the limitation of knowledge in the medical community at large and not a limitation-whether based on lack of expertise, insufficient information, or unprocured testing-of the individual examiner. The examiner should clearly indicate whether the Veteran has any ankylosis of the thoracolumbar spine; and, if so, the extent of any such ankylosis, and whether the ankylosis is favorable or unfavorable The examiner should also indicate whether the Veteran has any associated neurological manifestation(s) of the thoracolumbar spine disability. If so, for each identified manifestation, the examiner should clearly indicate whether such constitutes a separately ratable disability, and, if so, should assess the severity of such disability as mild, moderate, moderately severe, or severe. Knees-The examiner should conduct range of motion testing of each knee (expressed in degrees) on both active motion and passive motion and in both weight bearing and non-weight bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly so state and explain why. Also for each knee, the examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which pain begins. Also, the examiner should describe the frequency, duration, characteristics, severity, and functional loss during flare-ups of each knee disability. If the examination is not conducted during a flare-up, based on examination results and the Veteran’s documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. If it is not feasible for the examiner to make the above determinations without resorting to speculation, he or she must provide an explanation for why this is so. The examiner is advised that the inability to provide an opinion without resorting to speculation must be based the limitation of knowledge in the medical community at large and not a limitation-whether based on lack of expertise, insufficient information, or unprocured testing-of the individual examiner. Also, the examiner should indicate whether there is any ankylosis in the right or left knee, and, if so, whether such is favorable or unfavorable, and the angle at which the affected knee is held. 5. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claims on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication) and legal authority (to include, with respect to each higher rating claim, consideration of whether staged rating of the disability is appropriate). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Wilson, Counsel